Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—NLRB attempts to sever constitutionally challenged member protections, (Apr 13, 2026)

By Jared A. Phalen of Dinsmore & Shohl

The National Labor Relations Board ("NLRB") recently asked the United States District Court for the Southern District of Texas to issue a declaratory judgment severing the statutory removal protections for NLRB board members and Administrative Law Judges ("ALJs") from the rest of the National Labor Relations Act ("NLRA"). In making this request, the NLRA effectively conceded that the double layer protection currently given to its board members is unconstitutional. The NLRB made this concession in the hopes that it will avoid an injunction preventing the NLRB from prosecuting the underlying unfair labor practices case in its entirety.

In Energy Transfer LP v. National Labor Relations Board ("Energy Transfer LP"), Plaintiff Energy Transfer claims the NLRA provisions that shield NLRB members and ALJs from removal by the President are unconstitutional. Accordingly, Energy Transfer asked the Court to enjoin the NLRB from prosecuting claims of unfair labor practices against Energy Transfer. Previously, the NLRB argued the challenged removal protections were constitutional.

Now, the NLRB expressly states that it "does not defend the constitutionality of the challenged removal restrictions," which effectively concedes that the double layer protection currently given to its board members and to ALJs is unconstitutional. The NLRB asked the Court to sever those restrictions from the NLRA. The NLRB argued that severing the challenged restrictions will afford the President at-will authority to remove NLRB members and ALJs, which would remedy the Plaintiff's constitutional challenge to the structure of the NLRB. The NLRB made this concession hoping that it will prevent the Court from granting Energy Transfer's request to enjoin the NLRB from prosecuting the underlying unfair labor practices claim against Energy Transfer altogether.

In other words, the NLRB appears willing to concede some measure of independence to preserve its ability to continue to prosecute claims for unfair labor practices.

The NLRB's concession comes less than a year after the Fifth Circuit held the NLRB's removal protections for NLRB Members and ALJs are unconstitutional in Space Exploration Techs. Corp. v. NLRB, 151 F. 4th 761 (2025). The Supreme Court has not ruled on the issue.

Energy Transfer also argues that the NLRB's adjudicatory framework is unconstitutional in other ways, specifically, because its proceedings violate the Seventh Amendment's right to a trial by jury and the NLRB's ability to both handle cases and set labor policies violates the Fifth Amendment. The NLRB continues to oppose both arguments.

What Employers Need to Know

While the Supreme Court has not yet had the opportunity to opine on this issue, the NLRB's concession makes it even more likely that the current protections afforded to ALJs and NLRB members will be declared unconstitutional. If declared unconstitutional, the President would be allowed to remove NLRB members and ALJs without cause, essentially allowing the administration to make sweeping changes to labor policy. However, this would further politicize the NLRB.

The NLRB's concession may provide employers with arguments to seek injunctions blocking unfair labor practice proceedings on the grounds that being forced to appear before an unconstitutionally structured agency constitutes "irreparable harm." Ultimately, the success of these arguments will depend greatly on whether the Supreme Court agrees the challenged removal restrictions are unconstitutional, and if so, whether courts decide to enjoin the NLRB from prosecuting unfair labor practices cases or—as the NLRB requests—to sever the offending provisions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Jared A. Phalen

Dinsmore & Shohl

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Attorneys: (Dinsmore & Shohl).

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